Properly safeguard rental applicants' personal data

Q: I've always asked applicants for their Social Security numbers. But recently I've had a few express worries about identify theft. How can I assure them that I'll be careful? --Mary D.

A: Lots of landlords require this information, and for good reason. You'll need it (or an alternative, the Individual Taxpayer Identification Number, or ITIN) in order to request a credit report or background report. Careful landlords always order a credit check.

Your applicants' fears are well-grounded: If this information falls into the wrong hands, identify theft could be the result. You can assure your tenants that this won't happen because you will safeguard this data once you receive it. That is, you'll follow the requirements of the "disposal rule" of the Fair and Accurate Credit Transactions Act of 2003 (known as the FACT Act).

This law requires you to keep the information in a locked cabinet, dispose of the information when you no longer need it, establish a system for purging your files, and use an effective method (such as a shredder) to destroy the documents. You should destroy computer files with a utility that will "wipe" the data completely, by deleting the text and the directory.

Suppose your applicants are still worried? It's true enough that all the safeguarding in the world won't prevent a landlord himself from appropriating their identity. The rest of your business practices will hopefully suggest to applicants that they are not dealing with a shady businessperson.

For example, if your application and other materials are professional and reflect legal business practices, applicants should take comfort. And you might suggest that they would do worse to deal with a landlord who does not request this information and screens less thoroughly -- this person is likely to take less care in other aspects of the business, too, and may prove to be a neglectful and unprofessional landlord.

Q: When they moved in, our tenants asked me if they could redo the backyard. It was in rough shape, so I said yes, but I didn't pay for the plantings. Now that they are leaving, they say they're going to transplant several plants to their new house. This will leave a real mess. Can I stop it, or charge them for the cost to replant? --Riley D.

A: You and your tenants are at the mercy of the ancient law of "fixtures," which says that anything a tenant attaches to the building, fences or ground, by means of screws, nails or other means, belongs to the landlord unless the landlord has specifically agreed otherwise. The law arose in agrarian England, when the only tenants around were tenant farmers. When they put in a fence or a barn, in practical terms it couldn't be taken away anyway; and any crops also belonged to the feudal lord unless other arrangements were made. Tenants weren't thinking about taking bolted-in bookcases to the next farm.

Although the vast majority of tenants are not farmers these days, the rule of fixtures has stayed with us, with some perplexing results.

For example, a portable dishwasher, which attaches by snapping a coupling onto the kitchen faucet, isn't considered a fixture, and tenants can safely take it when they leave. But a system of track lighting, or a new kitchen faucet, attaches in a way as to become a fixture unless the two of you agree otherwise. Similarly, plants that have been placed in the ground (as opposed to those in pots) are "affixed." If the tenant removes them, you might have the right to deduct their value from their deposit, on the theory that they have taken your property. Tenants would need to challenge the deduction in small claims court if they disagree.

You no doubt noticed the use of the word "might" in the answer just given. If you deduct for the plants' removal and your tenants contest this in court, how will a judge look at it? A judge might consider that because the yard was originally "in rough shape," you have no reasonable expectation that it would be returned to you in any other state. (Remember, tenants are required to return rental property in the same condition as when they moved in, minus reasonable wear and tear.) Perhaps removing the plants will, in fact, return the yard to its original condition.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord's Legal Guide" and "Every Tenant's Legal Guide." She can be reached at janet@inman.com.